The Issue This is a case in which, by Administrative Complaint served on Respondent on September 17, 1985, the Criminal Justice. Standards And Training Commission seeks to revoke Certificate Number 502-3415, which was issued to Respondent on November 5, 1982. As grounds for the proposed revocation it is asserted that Respondent lacks good moral character and is therefore in violation of Section 943.1395(5), Florida Statutes.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Respondent was certified by the Criminal Justice Standards And Training Commission on November 5, 1982, and was issued Certificate Number 502-3415. During December of 1984 and January of 1985, the Respondent was employed as a correctional officer at the Polk Correctional Institution. On January 29, 1985, Polk County Sheriff's Deputy Lawrence Annen and Department of Corrections Inspector Clayton Lambert served a search warrant and conducted a search inside the Polk County, Florida, residence of the Respondent and his wife. Upon the arrival of Deputy Annen and Inspector Lambert at the Respondent's home on January 29, 1985, the Respondent was present and was advised of the warrant and of his constitutional rights under the Miranda decision. The Respondent indicated that he understood his rights. Subsequent to the foregoing, the Respondent led then Deputy and the Inspector to a quantity of cannabis, which was present inside Respondent's residence. The Respondent pointed out the cannabis and stated "here it is" and "this is all I have." During the execution of the search warrant, the Respondent also stated that he and his wife had purchased the marijuana for $25 an ounce or baggie. The cannabis was seized by Deputy Annen as evidence and was later submitted to the Florida Department of Law Enforcement crime laboratory for analysis. It was confirmed by scientific analysis to be 9.1 grams of cannabis. On January 31, 1985, the Respondent was again advised of his constitutional rights under the Miranda decision by Inspector Lambert. The Respondent thereafter admitted smoking cannabis because it relaxed him and admitted giving his wife money with which to buy cannabis. The Respondent readily admitted, during the course of the formal hearing in this case, that he had unlawfully possessed and used cannabis and had furnished the funds for his wife to purchase cannabis. The Respondent was adjudged guilty, on March 20, 1985, as to the criminal charge of Possession of Less Than Twenty Grams of Cannabis before the County Court, in and for Polk County, Florida.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards And Training Commission issue a Final Order revoking Respondent's Certificate Number 502-3415. DONE AND ORDERED this 16th day of May, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1986. APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner Paragraph 1 of the Petitioner's proposed findings consists of a summary of the procedural history of this case. It is rejected as a finding of fact, but is incorporated in substance into the introductory information in this Recommended Order. The following paragraphs of Petitioner's proposed findings are all accepted with a few minor editorial changes: 2, 3,-4, 5, 6, 7, 8, 9, 11, and 12. The substance of paragraph 10 of Petitioner's proposed findings is accepted with the deletion of unnecessary subordinate details. Findings proposed by Respondent The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Joseph S. White, Esquire Office of General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Harry C. Frier Post Office Box 2062 Lakeland, Florida 33802 Daryl G. McLaughlin, Director Criminal Justice Standards And Training Commission Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are whether Respondent violated Sections 943.1395(6) and (7), Florida Statutes (1995), 1/ and Florida Administrative Code Rules 11B-27.0011(4)(a) and (b), 2/ by failing to maintain the qualifications established in Sections 943.13(4) or (7); and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating law enforcement officers. Respondent is certified as a law enforcement officer pursuant to Correctional Certificate 92776 and is employed as a correctional officer by the Florida Department of Corrections. Respondent married Ms. Minnie Williams on May 6, 1988, in Lake City, Florida. They had one child, Blake, in 1990. They separated in September, 1993, and were divorced in November, 1994. The court awarded custody of the child to Respondent. In 1988, Respondent was in the Navy, stationed aboard the USS Saratoga, and based in Virginia. After Respondent and Ms. Williams were married, Respondent returned to Virginia. Ms. Williams remained in Lake City for several months before moving to Virginia to live with Respondent. Approximately one year after the marriage, problems developed in the marriage. Ms. Williams did not assist in the daily needs of the household, was unable to stay in school, and was not able to keep a job. Respondent's efforts to solve the marital problems were unsuccessful. His attempts at counseling failed to improve communications between the couple. In late 1989, Respondent informed Ms. Williams that the marriage was not going to work. He told Ms. Williams that he thought they should divorce. Ms. Williams returned to her mother's home in Lake City. Respondent's ship was transferred to Mayport, Florida in 1990. Ms. Williams did not want a divorce and did not want to separate from Respondent. Sometime in 1990, Respondent left the Navy and obtained employment with the Department of Corrections. Between 1990 and 1993, the couple maintained the marriage in an effort to provide a home for their child. Whenever Respondent attempted to discuss divorce, it resulted in a heated argument. Ms. Williams frequently threatened to "ruin" Respondent. The Wrench On March 9, 1993, Respondent counseled a co-worker who was distraught over her husband's affair. Respondent learned that the woman with whom the husband was having an affair was Respondent's wife. Respondent went home to pack his clothes and leave home. An argument ensued regarding Ms. William's infidelity. Respondent packed some of his personal belongings and left home. At approximately 11:00 p.m. on the same day, Respondent returned home for more of his personal belongings. Respondent was still very angry. Respondent and Ms. Williams became involved in another argument. During the argument, Respondent continued to pack his things. He retrieved a large wrench from his closet. Respondent was walking down the hallway leading from the bedroom to the front door. Respondent had the wrench in one hand and other personal belongings in the other hand. Respondent told Ms. Williams that this time he was leaving for good. It was approximately 12:10 a.m. on March 10. Ms. Williams told Respondent that she would get him fired and get custody of their child. Respondent turned abruptly around to face Ms. Williams. Ms. Williams was startled and frightened. She ran into the bedroom from the hallway where she scraped her leg on a jagged corner of the bed, fell, and struck her right hand on the open sliding glass door of the bedroom. Respondent never struck Ms. Williams in any way, with his hands, the wrench, or otherwise. The injuries to Ms. Williams were minor. Respondent left. Ms. Williams spent the night in her car. The next day she reported the incident to the Columbia County Sheriff's Office (the "Sheriff"). Ms. Williams reported to the investigating officer that Respondent beat her with his hands and a wrench for about 15 minutes. The injuries observed by the investigating officer were not consistent with such a beating. The injuries to Ms. Williams were consistent with a trip and fall. Ms. Williams had a three inch cut on her left leg at approximately the height of the corner of the bed. She also had a bruise on her right hand and some swelling. Ms. Williams did not seek medical treatment for her injuries. On March 16, 1993, the state attorney charged Respondent with misdemeanor battery. On April 5, 1993, Respondent entered into a Misdemeanor Intervention Agreement scheduled for six months. The agreement was terminated early on September 3, 1993. Respondent established a separate residence. Respondent had no further relations with Ms. Williams except those necessary for the care of their child. The Lip Respondent resided with his girlfriend and shared her car. Ms. Williams used Respondent's truck to commute to work. On March 27, 1994, Respondent went to Ms. Williams house to pick up clothes and diapers for his son. Ms. Williams routinely failed to deliver those items when she dropped off their child to Respondent. Ms. Williams was not home, and Respondent waited for her. When Ms. Williams arrived in Respondent's truck, the truck was driven by Ms. Williams' boyfriend. Respondent was angered that Ms. Williams' boyfriend was driving Respondent's truck. Ms. Williams and her boyfriend attempted to turn the truck around and leave. Respondent ran behind the truck so that the vehicle could not be turned around. Ms. Williams and her boyfriend were angry that Respondent blocked their exit. Ms. Williams and her boyfriend got out of the truck. The boyfriend and Respondent engaged in a physical altercation. During the altercation, Ms. Williams attacked Respondent. She hit and kicked him and jumped on his back. Either Respondent or the boyfriend inadvertently struck Ms. Williams in her lip. She went to the Lake City Medical Center for medical treatment. At the Medical Center, Ms. Williams reported the incident to the Sheriff. Her injuries were minor. On April 6, 1994, the state attorney charged Respondent with misdemeanor battery. He entered a plea of nolo contendere. The court withheld adjudication and placed Respondent on supervised probation for one year. On May 27, 1994, the supervised probation was converted to unsupervised probation with the provision that Respondent was not to contact Ms. Williams. The Window On April 4, 1994, Ms. Williams drove to Respondent's house to pick up their child. Respondent's girlfriend and mother were inside the house with him. Respondent went outside the house to the car. Ms. Williams got out of the car. She became belligerent and verbally abusive toward Respondent. Respondent told Ms. Williams to leave. Ms. Williams backed away from Respondent, struck the car window with her posterior, and the window broke. Ms. Williams became angrier. She threatened to have Respondent "messed up." Ms. Williams left with her child and went to her aunt's house. She telephoned the Sheriff and filed a complaint. On April 25, 1994, the state attorney charged Respondent with criminal mischief. Respondent determined that the criminal charges would be dropped if he paid for the window. Respondent gave Ms. Williams a money order for $159. On May 25, 1994, the state attorney filed a nolle prosequi declining to prosecute Respondent. In November, 1994, Respondent obtained custody of the only child of the marriage with Ms. Williams. Respondent has retained custody of the child. The Knife On February 1, 1995, Ms. Williams went to Respondent's house to deliver some clothes for their son. They went into the kitchen. Ms. Williams asked about reconciliation. Respondent stated that he wanted nothing to do with Ms. Williams. She became angry. She told him that she was going to "fix him." Respondent told Ms. Williams to leave, and she did. On February 2, 1995, Ms. Williams telephoned the Sheriff. She claimed Respondent had threatened her with a knife and beaten her for 15 to 30 minutes when she was at his home the previous day. Respondent did not batter Ms. Williams. He did not threaten her with a dangerous weapon. The investigating officer observed no injuries on Ms. Williams. She did not seek medical treatment for the alleged injuries even though she knew she was pregnant at the time with her boyfriend's child. A neighbor observed Ms. Williams leaving Respondent's home on February 1, 1995. She had no observable injuries and was gesturing to Respondent as she left. The state attorney charged Respondent with two misdemeanors, battery and exhibiting a dangerous weapon. The court found respondent not guilty of the latter offense but guilty of the former. The court sentenced Respondent to one year of unsupervised probation with the special condition that there be no contact with Ms. Williams. The Handgun On February 10, 1995, Respondent and Ms. Williams were driving in separate cars near the Gateway Plaza. Ms. Williams filed a complaint with the Sheriff's Office. She alleged that Respondent drove beside her and pointed a handgun at her. The state attorney charged Respondent with improper exhibition of a dangerous weapon. On October 3, 1995, the court found Respondent not guilty of the offense. Respondent did not exhibit a dangerous weapon. Paternity In 1995, Ms. Williams became pregnant with the child of her boyfriend. Ms. Williams charged Respondent with paternity. Paternity tests proved that Respondent was not the father of the child. Respondent had not had sex with Ms. Williams since 1993. Other Matters After their divorce, Ms. Williams repeatedly threatened Respondent by stating that she would get him fired and get custody of their child. She filed approximately 20 complaints against Respondent with the Sheriff's Office. She also contacted the former Department of Health and Rehabilitative Services to report Respondent for child abuse. Respondent did not report the criminal actions filed by Ms. Williams to his employer and received a written reprimand for not reporting the criminal matters. Respondent is still employed by the Department of Corrections.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 943.1395(6) and (7) and Rules 11B-27.0011(4)(a) and (b) and dismissing the Administrative Complaint. RECOMMENDED this 6th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida, Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Johnny Johnson (Johnson), has been employed by the County as a correctional officer for approximately three years, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Johnson. Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Johnson had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. 3/ By letter dated November 1, 1988, the Commission notified Johnson and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Johnson filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Johnson denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency record, inquiries of the applicant's neighbors and associates, and a preemployment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Johnson on May 14, 1985, at which time he admitted that he had used marijuana on two occasions. At that time he estimated the date he last used marijuana to have been 1972; however, the proof demonstrates that he misapprehended the date of last usage, and that the proper date was December 1970. His last use consisted of "passing a joint" ,with some college friends when he was 23 years of age. Prior to that, he had used marijuana once while a solider in Vietnam. Notwithstanding the County's conclusion, based on its investigation and analysis of Johnson's background, that Johnson possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana over 18 years ago. The Commission's action is unwarranted. Here, Johnson used marijuana two times, the last time being over 18 years ago when he was 23 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Currently, Johnson has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Prior to his employment as a corrections officer, Johnson was employed as an administrative assistant by Dade County, Department of County and Economic Development, for two and one-half years. He has been certified as a substitute teacher in Dade County since 1982, and has been a member of the Air Force Reserve for three years, with several letters of commendation Overall, Johnson has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Johnny Johnson, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is charged under Chapter 39, Florida Statutes, to conduct background screenings on individuals employed by any of its providers of delinquency services or programs who are working with juvenile offenders in positions of special trust. The purpose of the background screening is to determine if the individual has committed an offense which would disqualify the individual from working in positions of special trust with juvenile offenders. Petitioner was employed by the Lakeland Marine Institute (LMI) on May 24, 1994, as a counselor. LMI is a step-down program for juvenile offenders being released from boot camps and detention centers. A large percentage of the juveniles coming through LMI are convicted of drug offenses. During 1994, LMI was providing delinquency service and programs for the Department of Health and Rehabilitative Services (HRS) in connection with juvenile offenders who came through its facility and, as such, was an HRS provider. Because Petitioner was working in a position of special trust with juvenile offenders at LMI he was required to undergo background screening. Petitioner's fingerprints were taken on May 24, 1994, and submitted to HRS for processing. It is not clear from the record if HRS conducted a background screening on Petitioner. In any event, HRS did not provide LMI with any results from Petitioner's background screening. Chapter 94-209, Laws of Florida, transferred certain responsibilities concerning juvenile offenders from HRS to the Department of Juvenile Justice, a newly-created department. On January 1, 1995, the Department began background screenings on all of its providers' employees who were working in positions of special trust with juvenile offenders on January 1, 1995. On June 1, 1995, LMI submitted to the Department a Request for Preliminary FCIC/NCIC and DHSMV Screening Check and a Request for Preliminary FAHIS Screening Check on Petitioner. As part of the screening process, Petitioner signed and filed with the Department an Affidavit of Good Moral Character. His signature on this standard form affidavit indicates that Petitioner had not been convicted of any drug offenses under Chapter 893, Florida Statutes. However, it does not appear that Petitioner was attempting to conceal his convictions because at the same time he disclosed those convictions in his application for employment. The FAHIS Screening Check was negative, in that no abuse history was found. Likewise, the results of the DHSMV Screening Check indicated that Petitioner's record was clear. Preliminary FCIC/NCIC Screening Check indicated that Petitioner had been convicted of possessing cocaine with intent to sell and the sale of cocaine, a second degree felony and a disqualifying offense. The screening check was rated as Unfavorable/Disqualifying. Petitioner's criminal record revealed that Petitioner had committed the following offenses: Possession of cocaine with intent to sell - March 28, 1991. Sale of Cocaine - March 28, 1991. Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Possession of cocaine with intent to sell - January 7, 1993. Sale of cocaine - January 7, 1993. Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Possession of cocaine with intent to sell - February 18, 1993. Sale of cocaine - February 18, 1993, Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Originally, Petitioner was placed on probation for the offenses committed on March 28, 1991 However, when Petitioner committed the above listed offenses in 1993, probation was revoked. On June 10, 1993, Petitioner pled nolo contendere to all of the above offenses. Petitioner was adjudicated guilty on all counts and sentenced to a term of seven years on each count listed with each sentence to run concurrently with the other sentences. Additionally, Petitioner was placed on seven years probation on each count listed above with each term of probation to run concurrently with the other terms of probation. However, the terms of probation were to run consecutively to the sentences imposed. Petitioner freely admits that he was on drugs for a period of time before his incarceration in 1993, and that the offenses were committed for the purpose of paying for his drug habit and not as a means of making money. The offenses committed by Petitioner in 1991, were his first brush with the law, and at that time Petitioner was 38 years of age. Although the March 28, 1991, offenses involved the sale of cocaine within a 1000 feet of the Fort Meade Middle School, there is no evidence that Petitioner ever sold, or attempted to sell, illegal drugs to a minor. Petitioner served his time at Hardee Correctional Institution and Madison Correctional Institution. From the record it appears that Petitioner was eligible for early release and was released by the Department of Corrections (DOC) on February 8, 1994, and placed on probation. Petitioner began his rehabilitation while still incarcerated by DOC by participating in the DOC Drug Abuse Program and Prison Fellowship. Petitioner has continued his rehabilitation since being released from prison through his work at LMI, the church and the community. Since his release from prison, and during his tenure with LMI, approximately 15 months, Petitioner has gained the respect and support of his fellow workers and supervisors at LMI. Also, during his tenure with LMI, Petitioner has gained the respect and support of Department employees with whom he came in contact as a result of his work with juvenile offenders at LMI. Petitioner has complied with all conditions of his probation, including random drug testing with all reports showing negative results, and has shown a positive attitude toward community supervision while on probation. Since being placed on probation, Petitioner has gained the support and respect of the Correctional Probation Officers who handle his case. Since his release, Petitioner has not associated with the criminal element with whom he had association before his conviction. Since his release, Petitioner has gained the respect and support of the community of Fort Meade, specifically the religious and school community, for his work with children. During his tenure with LMI, Petitioner worked closely with children. Petitioner has counseled children and their parents without any problems. There is competent substantial evidence to establish facts to show that Petitioner has rehabilitated himself such that he will not present a danger to the safety or well being of children and that he is of good moral character so as to justify an exemption from disqualification, notwithstanding Petitioner's age when he committed the offenses or that the offenses are close in time to the request for exemption or that he has only served approximately two years and two months of a seven year probation and is still under supervised probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption from disqualification from employment in a position of special trust. RECOMMENDED this 23rd day of April, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5330J The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case. Petitioner's Proposed Findings of Fact. Petitioner's proposed findings of fact 1 through 9 are set forth more as argument than findings of fact. However, where a proposed finding of fact can be gleaned from the argument it has adopted in Findings of Fact 1 through 22, with the exception of Petitioner's argument in proposed findings of fact 1, 2, 5 and 6 that his background screening with HRS had been completed by HRS and was favorable but was being disregarded by the Department. There is no evidence that HRS completed this screening or that the Department had any knowledge of any results of such screening. Department's Proposed Findings of Fact. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed findings of fact 13-15 are covered in the Preliminary Statement. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Phillip White, Pro se 1370 North Charleston Fort Meade, Florida 33841 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, David Fialko (Fialko), has been employed by the County as a correctional officer since December 5, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Fialko. 3/Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Fialko had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of food moral character. By letter dated November 1, 1988, the Commission notified Fialko and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Fialko filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Fialko denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Fialko on December 13, 1985, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Fialko's use of cocaine occurred prior to 1983, when he was 19 years of age, and was limited to two or three occasions. His use of marijuana commenced when he was approximately 16 years of age, and continued on an occasional basis until he was 19 years of age. Subsequent to 1982, Fialko has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Fialko's background, that Fialko possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his use of marijuana and cocaine prior to 1983. The Commission's action is not warranted by the proof. In 1982, at age 19, Fialko attended and graduated from the Broward Fire Academy with the aspiration of becoming a fireman; however, due to the want of available positions and the number of applicants, he was unable to secure employment. In January 1983, recognizing that the likelihood of securing employment as a fireman was scant, Fialko entered Sheridan Vocational School to pursue a career as a medical laboratory technician. Following his graduation from Sheridan in early 1984, and his certification as a medical laboratory technician, Fialko was employed by Quality Laboratory. He remained in the employ of Quality Laboratory for over three years, until employed by the County as a correctional officer, and was recognized as an excellent employee. To date, Fialko has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two and one-half years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. While Fialko, born December 10, 1983, used cocaine two or three times when he was 19 years of age and used marijuana occasionally between age 16 and 19, such use occurred approximately 7 years ago and was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character.4/ More indicative of Fialko's moral character is his continuous employment since age 16, his drive to secure an education and training at his own expense, and his excellent performance in all his endeavors. Overall, Fialko has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, David Fialko, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
The Issue Whether Respondent correctional officer’s license should be disciplined.
Findings Of Fact Respondent, John W. Bradley, is a certified correctional officer in the State of Florida, holding Law Enforcement Certificate License No. 165671. He has not previously had his license disciplined. Around midnight on February 8, 2000, Officer Danny R. Alsobrooks, DUI Officer, Panama City Police Department, was called to the 4800 block of West Highway 98 by Corporal Victor Melvin of the Panama City Police Department for suspicious drunk driving by the Respondent. Officer Alsobrooks was informed by Corporal Victor Melvin that Respondent had been driving erratically and had an odor of alcohol on his breath. Upon arrival to the scene, Officer Alsobrooks noticed that Respondent was seated and in control of a black Toyota pickup. Officer Alsobrooks began performing field evaluations to assess the sobriety of Respondent. He too noticed an odor of alcohol on Respondent’s breath. Officer Alsobrooks had Respondent perform the one legged stand evaluation. He explained to Respondent what to do. He asked the Respondent to count one thousand one, one thousand two, one thousand three. The Respondent, however, counted one one thousand, two one thousand, three one thousand. Additionally, Respondent hopped during the evaluation and used his arms to maintain his balance. Petitioner’s behavior indicated that he was impaired. Officer Alsobrooks then demonstrated to Respondent the stance for the walk-and-turn evaluation. Respondent was unsteady and unable to maintain balance while he performed the walk and turn; he used his arms for balance, stepped off the line, failed to touch heel to toe numerous times, made an improper turn, and failed to touch heel to toe in his return steps. Again his behavior indicated that he was impaired. Officer Alsobrooks concluded that Respondent was too impaired to operate a motor vehicle and placed him under arrest. Respondent was transported to the Bay County Jail. Upon arrival at the jail, Officer Alsobrooks had the Respondent complete the Implied Consent Warning form, waited for a 20-minute period of time and then escorted Respondent to the Intoxilyzer room to perform a breath test. The first Intoxilyzer test failed due to the presence of mouth alcohol. Therefore, the Intoxilyzer machine did not return a result. Officer Alsobrooks waited another 20 minutes before performing more Intoxilyzer tests. The tests were performed at three-minute intervals and indicated a blood alcohol level of .135, .167, and .159. Respondent offered no credible evidence to dispute these results. These results combined with Respondent's performance on the field tests demonstrated Respondent was unlawfully operating a motor vehicle while he was impaired in violation of Section 316.1932, Florida Statutes. Upon the receipt of the results, Officer Alsobrooks issued a Florida DUI Uniform Traffic Citation No. 444309-X against Respondent, completed and signed a Breath Test Result Affidavit, an Alcohol Influence Report, and a narrative regarding Respondent’s arrest. The criminal charges against Respondent resulted in a Plea Bargain Agreement in Absentia and an Order on Plea in Absentia by the Court. Respondent pled to reckless driving. The penalties included completing DUI school. The evidence did not demonstrate that Respondent has had any other arrests or convictions of any crime. Nor did the evidence show that Respondent had more than one DUI or was habitually driving and drinking. No other evidence regarding Respondent’s moral character was offered by the Petitioner. Without such evidence, one DUI is insufficient to demonstrate that a person is of bad moral character or even raise a presumption that a person is of bad moral character. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Respondent be found not guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 28th day of July, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2003. COPIES FURNISHED: John W. Bradley 3555 Peony Lane Greenwood, Florida 32443 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue presented is whether Petitioner’s application for an educator’s certificate should be granted.
Findings Of Fact Petitioner is 31 years old. He has lived in Florida for the past 11 years. Petitioner works at a rehabilitation center that provides services to individuals with substance abuse problems. He has worked in that job for about a year. As a client advocate, he works with children 16 years of age and older. For ten years Petitioner has served as a volunteer basketball coach in the Flagler County Police Athletic League (PAL). He currently coaches the high-school-aged girls' travel team. Over the years he has coached boys and girls in the fourth grade through the twelfth grade. For three or four years Petitioner has been a volunteer in a church-based youth ministry program. He supervises, mentors, and provides encouragement to the children in the program. Petitioner applied for an educator’s certificate so that he can coach basketball at the high school level. He does not need the certificate to continue coaching in the PAL, but he needs the certificate to work or even volunteer as a high school coach. Petitioner was employed as a certified correctional officer at Tomoka Correctional Institution (TCI) for about four years, until September 23, 2007. TCI is a state prison in Volusia County, Florida, operated by the Florida Department of Corrections (DOC). As Petitioner was driving to work at TCI on September 23, 2007, he saw a team of DOC investigators conducting a drug interdiction at the facility. He pulled his car over to the side of the facility’s entrance road and threw a small package out of the car window before proceeding to the parking lot. TCI staff saw Petitioner throw the package from his car and informed the DOC investigators. The DOC investigators went to the area and recovered the package. The package contained marijuana. It was in a plastic baggie and had been tightly wrapped in paper towels and then covered with medical tape. The manner in which the marijuana was wrapped is consistent with the most common way that drugs are packaged when they are smuggled into a prison. The package was small enough and flat enough to be hidden in a man's boot or around his crotch area and not be detected during a cursory pat-down search. After Petitioner was told by DOC investigators that a drug-sniffing dog alerted to his car, he voluntarily spoke to the investigators and admitted that the package found next to the entrance road was thrown there by him, that he knew it contained marijuana, and that he threw it out of his car when he saw the drug interdiction team at the facility. However, Petitioner denied that he planned to sell or give the marijuana to an inmate or anyone else “inside the walls” of the facility. Petitioner told the DOC investigators, and he testified at the final hearing, that he received the marijuana the day before the incident while he was at a fundraising car wash for his PAL basketball team. The children on the basketball team were at the car wash when the marijuana was delivered, as were Petitioner’s children. Petitioner told the DOC investigators, and he testified at the final hearing, that his sister-in-law called him before the car wash and asked him to help her by allowing a friend to bring marijuana for her to Petitioner at the car wash. She said she would later pick it up from Petitioner. Petitioner told the DOC investigators, and he testified at the final hearing, that he did not give much thought to her request because she was a family member and one should always help out family members. When the marijuana was delivered, Petitioner was at his car which was a distance away from where the cars were being washed. He wrapped the marijuana in paper towels and medical tape, which he had in his car from a prior injury, so that his children, who were helping wash the cars, would not see it when he drove them home in his car. His sister-in-law did not come to pick up the marijuana after the car wash. He forgot that the marijuana was in his car until he was close to work the next day. When he saw the interdiction team at TCI, he stopped and threw the marijuana out of the car. He then drove into the parking lot, parked his car, and went in to work. Petitioner was immediately arrested after his confession to the DOC investigators. He was charged with possession of more than 20 grams of marijuana and introduction of contraband into a state prison. Both of those charges are felonies, but for reasons not explained in the record, the State Attorney elected not to prosecute either of the charges. Petitioner was immediately fired from TCI after his arrest, and he subsequently lost his certification as a correctional officer. Petitioner testified that he understands that what he did was wrong, that he is sorry for what he did, and that he will never do it again. This testimony appeared to be sincere. The character witnesses who testified on Petitioner’s behalf at the final hearing all testified that Petitioner is a good person and a good role model for the children that he coaches and mentors; that this incident was out of character for Petitioner; and that they have no concerns about Petitioner working with children. This testimony was sincere and clearly heartfelt. Although the DOC investigators weighed the marijuana while it was still wrapped and determined that it weighed 37.8 grams, they did not weigh the marijuana itself after removing it from its packaging. There is no competent evidence in this record as to the weight of the marijuana. Accordingly, it cannot be determined whether the amount of marijuana Petitioner threw from his car would have constituted a felony or a misdemeanor. Similarly, there is no competent evidence in this record as to whether Petitioner was on the grounds of a state prison when he threw the marijuana from his car. There are no security fences, no checkpoints, and no security towers before one reaches the signage for the correctional facility and its attendant structures. Petitioner believed that he would have been on prison property if he had passed by the signage for the facility and had crossed the road surrounding the perimeter of the prison. One of the DOC investigators testified that the property boundary was several hundred yards before the entrance sign. The photographs admitted in evidence visually suggest that the correctional facility's property commences beyond the sign and beyond the location where Petitioner threw out the marijuana. There is no competent evidence as to whether Petitioner was on state property with the marijuana in his possession. Petitioner denies that he intended to introduce contraband into the correctional facility. Rather, his actions in throwing the marijuana out of his car at a location he believed to be outside of the facility's property suggest he did not intend to bring the contraband onto the grounds of the facility. Petitioner has met the qualifications for obtaining an educator's certificate to enable him to coach basketball on the high-school level.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting Petitioner’s application for an educator’s certificate. DONE AND ENTERED this 2nd day of December, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2009. COPIES FURNISHED: Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Sidney M. Nowell, Esquire Justin T. Peterson, Esquire Nowell & Associates, P.A. 1100 East Moody Boulevard Post Office Box 819 Bunnell, Florida 32110-0819 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Mariam Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2017),1/ and Florida Administrative Code Rule 11B-27.0011(4)(d); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Officer Barcia was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on April 1, 2016, and issued Correction Certification No. 332010. Officer Barcia was employed by the Department from June 19, 2017, to January 3, 2018. As part of his employment agreement with the Department, he agreed to submit to random drug testing. On November 20, 2017, Officer Barcia was randomly selected by the Department to provide a drug test, signed a document indicating his agreement to take a drug test, and submitted a urine sample for drug testing. Prior to the submission of his sample, Officer Barcia did not notify his employer of any reason his drug tests would come back positive or indicate any reason to distrust the drug test laboratory. After submitting the sample, Officer Barcia signed a form, which stated "I certify that I provided my specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information and numbers provided on this form and on the label affixed to each specimen bottle is correct." Section 112.0455, Florida Statutes, "the Drug-Free Workplace Act" (Act), establishes standards for workplace drug- testing programs. The Act authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing laboratories to conduct initial screening and confirmation testing. Officer Barcia does not dispute the testing procedures or qualifications of the employees or testing procedures used by the laboratory that tested his urine sample, or the chain of custody of his sample. Dr. Bucklin is a practicing physician and the national MRO for U.S. Healthworks and Centra. He has been certified for 20 years and is on the faculty for the American Association of Medical Review Officers, an accrediting organization. He was licensed as a physician by the State of Florida at both the time the drug test was conducted and at the time of his testimony at hearing. Dr. Bucklin's office reviewed the drug tests conducted on the urine sample of Officer Barcia that had been taken on November 20, 2017, and identified the presence of two anabolic steroids: drostanolone and trenbolone. Both the parent drugs and metabolites were identified by immunoassays, the screening test (very sensitive, but not specific), and by gas chromatography-mass spectometry, the confirmation test (highly specific, but not as sensitive). Prior to submission of these test results to the Department, on December 8, 2017, Officer Barcia was contacted by Dr. Bucklin and notified that he tested positive for anabolic steroids. Officer Barcia was asked if he could give a reason his results were positive. Officer Barcia told Dr. Bucklin that he was on "estrogen blockers" and that he would send verification to Dr. Bucklin. The drug tests in this case were conducted in accordance with section 112.0455 and were not contested by Officer Barcia. At hearing, Officer Barcia testified that a doctor gave him a prescription for drostanolone sometime around September 2015 to treat a slight bump under his left nipple that had sensitivity and swelling. He was not prescribed a two-year dosage. He testified that he obtained the prescription from the WFN Clinic, which was later shut down in February 2017. He testified that he believed at the time that the clinic was legitimate and that he had no reason to believe the prescription was unlawful. Officer Barcia stated that when he was originally given the prescription, he was instructed to "take as needed" and that he took it only for the prescribed purpose. He stated that in August 2017, he felt a bump that resembled the one he had when he was originally given the medication so he took it "as needed" and the bump vanished. Dr. Bucklin credibly testified at hearing, and it is found, that neither drostanolone nor trenbolone may lawfully be prescribed to a patient in the United States. As Dr. Bucklin testified, even if drostanolone or trenbolone were illegally prescribed, those prescriptions could not be filled at a pharmacy. Dr. Bucklin also credibly testified at hearing that no verification of a prescription was ever received from Officer Barcia, that a male would be prescribed estrogen blockers only under unusual circumstances, and that even if estrogen blockers were ingested, they would not have turned into drostanolone or trenbolone, as detected in the urine sample. Officer Barcia's testimony that he thought he obtained a legitimate prescription from WFN Clinic was not credible. He failed to identify the doctor who prescribed the steroids. Even had his testimony about his medical condition been credible, it would not explain the drug test results. There is no reasonable explanation as to why a physician would secretly give an unlawful prescription for steroids (rather than a medicine that could be lawfully prescribed) to an unwitting patient in order to treat a medical condition, while misrepresenting to that patient that he was receiving estrogen blockers. Officer Barcia failed to maintain good moral character in that he unlawfully injected, ingested, inhaled, or otherwise introduced anabolic steroids into his body, as evidenced by a drug test conducted in accordance with sections 112.0455. No evidence of any prior disciplinary history was introduced for Officer Barcia.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Ernie Barcia in violation of section 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of two years, followed by a two-year period of probation, subject to terms and conditions imposed by the Commission to facilitate his rehabilitation. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2019.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional Officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Linda Dunham (Dunham), has been employed by the County as a correctional officer since February 26, 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Dunham. 3/ Accompanying the application (registration) was an affidavit of compliance, dated February 26, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Dunham had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Dunham and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine, cannabis and amphetamine. Following receipt of the Commission's letter of denial, Dunham filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Dunham denied that she failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Dunham on November 23, 1987, at which time she admitted that she had used marijuana, cocaine, and amphetamines. Regarding such use, the proof demonstrates that in 1970 Dunham was traveling with a dinner theatre and would occasionally take amphetamines, which she obtained from a friend, to stay awake. In the early 1970s, Dunham also used marijuana approximately twice a month over a three-year period. After terminating such use in the early 1970s, she did not again use marijuana until 1985 when she tried it one time at a birthday party. Dunham's use of cocaine was sporadic and infrequent, totalling no more than 5 times over the course of her life, with the last time being in 1985. Other than as heretofore found, Dunham has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Dunham's background, that Dunham possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her prior use of controlled substances. The Commission's action is not warranted by the proof. Here, Dunham, born January 22, 1953, was 18-20 years of age when she used amphetamines and marijuana in the early 1970s, and her use of cocaine was limited to approximately five times during the course of her life, with the last time being in 1985. But for having tried marijuana one more time in 1985, Dunham has not otherwise used controlled substances. Considering the totality of the circumstances, Dunham's use of controlled substances was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Dunham has been employed by the County as a correctional officer, a position of trust and confidence, for over one year. Her annual evaluations have been satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Dunham was certified by the Commission on June 17, 1988, for completion of the 675-hour basic correctional officer course, and has received two commendations during the course of her employment with the County. She is current on all her financial obligations, and otherwise enjoys a good reputation in the community. Overall, Dunham has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Linda Dunham, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June 1989.
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent was certified by the Commission on March 1, 1983, and was issued certificate number 06-83-502-01. Prior to January, 1990, the Respondent was employed as a correction officer at Tomoka Correctional Institution (TCI). During the course of his training and experience as a correction officer Respondent has become familiar with cannabis and is able to recognize the controlled substance both by sight and smell. Respondent has confiscated cannabis from inmates at TCI at least one hundred times. On January 17, 1990, Respondent went to the Cool Breeze Bar in Seminole County, Florida. On that date, the bar was under surveillance by the narcotics and vice unit as it was thought to be a known gathering place for individuals selling illegal narcotics. As part of his surveillance of the bar, Deputy Shea observed a man later known to be the Respondent passed out in an automobile. The automobile belonged to Respondent and he was its only occupant. When Deputy Shea approached the vehicle he observed what appeared to be a marijuana pipe on the dash of the car at approximately arm's length from the Respondent. On further search Deputy Shea retrieved an envelope containing a substance which he later field tested. That substance field tested positive for cannabis. Deputy Shea's investigation was initiated after he opened the car door and smelled an aroma which he identified with burnt cannabis. After the Respondent was aroused from his sleep, Deputy Shea patted him down and placed him under arrest. The Respondent was disoriented and remained so during the time Deputy Shea searched the vehicle. Respondent had been drinking heavily. Deputy Shea marked the seized items for identification and later sent them to the sheriff's laboratory for additional testing. That testing was performed by Ms. Alt. Ms. Alt weighed and tested the items seized from Respondent's vehicle and determined that the plant material was cannabis and weighed less than 20 grams. Respondent knew on the evening of January 17, 1990, that cannabis had been smoked in his car but claimed he was unaware of the illegal items which others had allegedly left behind. Respondent claimed his cousins had smoked the marijuana in his car while he was in the bar and that he had gone to the vehicle later to sleep off his intoxication. On March 19, 1990, the Respondent entered a plea of nolo contendere to the charge of possession of less than 20 grams of cannabis and was adjudicated guilty.
Recommendation Based on the foregoing, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. RECOMMENDED this 12th day of September, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3589 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: 1. Paragraphs 1 through 14 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Edward Chavers 113 Scott Drive Sanford, Florida 32771 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
